Thursday round-up

Posted Thu, June 27th, 2013 10:12 am by Matthew Lanahan

The Court issued the last three decisions of the Term yesterday, bringing the total decisions this week to eleven. Coverage and commentary have focused on the decisions in the two same-sex marriage cases, United States v. Windsor and Hollingsworth v. Perry. Kali Borkoski has a rundown of this blog’s coverage here; Dan Stein and Sam Barr also provided afternoon and evening round-ups of coverage, respectively.

Coverage of the same-sex marriage cases comes from Jess Bravin of The Wall Street Journal; Kenneth Jost at Jost On Justice, and commentary comes from Jonathan Rauch of the Brookings Institute. PrawfsBlawg has extensive coverage and commentary on the rulings, including from Howard Wasserman (here, here, and here) Rick Garnett, Rick Hills (here and here), Will Baude, and Cynthia Godsoe. Ben Goad and Julian Hattem of The Hill’s RegWatch report that, in response to yesterday’s ruling in Windsor, the president has ordered administration officials to review federal statutes and regulations. Nicole Huberfield at HealthLawProf Blog argues that the decision in Windsor will have far-reaching effects for healthcare. Other coverage of the decisions comes from Sahil Kapur of Talking Points Memo, who covers both DOMA (Windsor) and Proposition 8(Perry); Ogletree Deakins; and Joseph Henchman and Nick Kasprak of the Tax Foundation, who focus on the tax implications of the Windsor decision.

Justice Scalia’s dissent in Windsor garnered significant commentary: Jeremy Leaming of ACSblog argues that it conflicts with his decision to join the majority in Shelby County v. Holder, issued on Tuesday; PrawfsBlawg has commentary on the dissent from Dan Markel and Howard Wasserman, while Sahil Kapur of Talking Points Memo catalogs what he describes as the Justice’s “top ten rage quotes.”

At NPR (audio), Nina Totenburg covers Tuesday’s decision in Shelby County, in which the Court held that the coverage formula used to determine what state and local governments are subject to the preclearance requirement of Section 5 of the Voting Rights Act is unconstitutional. Other coverage comes from Robert Rubin at California Lawyer and Sahil Kapur of Talking Points Memo.

At PrawfsBlawg, Eduardo Penalver discusses the Court’s decision in Koontz v. St. Johns River Water Management District, considering why, “if Nollan/Dolan is just an application of unconstitutional conditions doctrine, the Court seem[s] so eager (desperate?) to put the underlying (unconstitutional) demand within the ‘takings’ box?” Jeremy P. Jacobs of E&E Publishing also reports on Koontz.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondents in Shelby County v. Holder; the firm’s Tejinder Singh was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in Hollingsworth v. Perry; the firm’s Kevin Russell was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in United States v. Windsor.

If you have (or know of) a recent article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.comso that we can consider it.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.